On August 19, 2004, the Complainant, Marchell
Mack, filed a complaint with the Madison Equal Opportunities Commission
(Commission). The complaint alleged that the Respondent, Kayser Automotive
Group, discriminated against him on the basis of his race and disability when it
refused to service his car in July of 2004. The Respondent denied that it
discriminated against the Complainant in any way.

Subsequent to an investigation, a Commission
Investigator/Conciliator issued an Initial Determination concluding that there
was probable cause to believe that the Respondent had discriminated against the
Complainant in the provision of a public place of accommodation or amusement on
the bases of his race and/or his disability. Efforts at conciliation of the
complaint proved unsuccessful, and the complaint was transferred to the Hearing
Examiner.

The Hearing Examiner held a public hearing and on
September 18, 2007, issued his Recommended Findings of Fact, Conclusions of Law
and Order. The Hearing Examiner concluded that although the record demonstrated
that something unusual had occurred, the Complainant failed to meet his burden
of proof to establish that he had been discriminated against on the basis of
either his race or disability. The Complainant appealed the Hearing Examiner's
Recommended Findings of Facts, Conclusions of Law and Order.

The parties were given the opportunity to submit
exceptions and briefs in support of their respective positions. On March 14,
2008, the Commission met to consider the appeal of the Complainant.
Participating in the Commission's deliberation were Commissioners Bayrd, Cramer
Walsh, Ellingson, Enemuoh-Trammell, Holmes-Hope, McDonnel, Morrison, Selkowe,
Solomon, Wood and Zipperer.

After review of the record as a whole and
subsequent to extensive discussion, the Commission adopts by reference, as if
fully set forth herein, the Hearing Examiner's Recommended Findings of Fact,
Conclusions of Law and Order dated September 18, 2007. The Commission finds that
the Hearing Examiner's determination that discrimination did not occur as
alleged by the Complainant is supported by the record in this matter.

ORDER

The complaint is hereby dismissed.

Joining in the Commission's decision are
Commissioners Cramer Walsh, Ellingson, Enemuoh-Trammell, Holmes-Hope, Selkowe
and Zipperer. Opposing the Commission's decision are Commissioners Bayrd,
McDonnel, Morrison, Solomon and Wood. No Commissioner recused himself or
herself.

HEARING EXAMINER'S RECOMMENDED FINDINGS OF
FACT, CONCLUSIONS OF LAW AND ORDER

Case No.
20043144

This matter came before the Hearing Examiner,
Clifford E. Blackwell, III, for a public hearing on the merits of the complaint
on December, 2005. Appearing at the time of hearing were the Complainant,
Marcell Mack, and his attorney, Axel Candelaria of Mingo and Yankala, and the
Respondent by its corporate representative, Timothy Douglas, and its attorney,
Timothy Yanachek of the law firm of Bell, Gierhart and Moore. Based upon the
record of proceedings in this matter, the Hearing Examiner issues his
Recommended Findings of Fact, Conclusions of Law and Order.

RECOMMENDED FINDINGS OF FACT

The
Complainant is an African American. He has a pronounced limp from an injury.
The limp is readily noticeable to an observer.

The
Respondent is an automobile dealership with its principle place of business
located in Madison at 2303 W. Beltline Highway.

The
Complainant owns a 2001 Ford Taurus. He has taken it to a number of
dealerships for service and other work. In the summer of 2003, the
Complainant first took his Taurus to the Respondent for service. Over the
next year, the Complainant took his car for a variety of maintenance,
repairs and service to the Respondent. Prior to July 14, 2004, there were no
major problems between the Complainant and those employed by the Respondent.
Some of the work performed by the Respondent was under warranty, some the
Complainant paid for, and other work was done without charge as a courtesy
to the Complainant.

Between
the end of June, 2004, and July 14, 2004, the Complainant became concerned
that the Respondent had not performed an alignment as well as it should
have. He took his Taurus to Sears for an evaluation of the work performed by
the Respondent. The results of the Sears evaluation were somewhat equivocal;
however, the Complainant believed them to show a problem with the work
performed by the Respondent.

On
July 14, 2004, the Complainant went to the Respondent's dealership to
redress the problem. The Complainant started with either a mechanic or his
usual service representative. As he became more frustrated, the Respondent's
Service Manager, Tim Douglas, came to speak with the Complainant. The
Complainant wanted the Respondent to make good the repair while Douglas felt
that no further work need be done, and that any problem was a result of
normal wear and tear of items not covered by the warranty.

The
Complainant became increasingly agitated. At some point things came to a
head. It is not clear what was said between the Complainant and Douglas, but
the Complainant took his car and left the Respondent's dealership.

The
Complainant's friend, Laura Kopp, and a friend of hers went to meet the
Complainant at the Respondent's place of business with the intention of
hanging out with the Complainant once his business was completed. Kopp did
not hear what was said between the Complainant and Douglas. However, as the
Complainant and Douglas parted, Kopp observed Douglas as he was walking away
from her and the Complainant and towards his office area. She heard someone
say, "That nigger's going to cause trouble," or something to that
effect as Douglas passed by other employees. Kopp told the Complainant of
what she heard before she went to smoke a cigarette in her car and wait for
the Complainant.

Willie
Solis, a friend and acquaintance of the Complainant, came to the
Respondent's dealership on July 14, 2004, along with his wife, to obtain a
part for Solis's wife's car. As they approached the service area, Solis
observed the Complainant leaving in a distressed condition. Solis attempted
to signal the Complainant to discuss photography and to say hello. He was
unable to catch the Complainant's attention. Solis's wife suddenly told
Solis she wanted to leave. When he questioned her about her change in
interest, she told him that she had heard someone say, "Nigger's going
to cause trouble," and she did not feel welcome.

The
statement apparently heard by Kopp and Solis's wife was made after the
Complainant had left the area, and was not heard by the Complainant.

Neither
Kopp nor Solis heard the discussion between the Complainant and Douglas.

On
July 23, 2004, the Complainant wrote to the Respondent explaining his
problems with repairs. He also mentioned that he believed he had been
discriminated against, but did not detail the manner of the discrimination,
nor did he detail any of the events of July 14, 2004.

On
July 30, 2004, the Respondent, by Gregg Erickson, responded to the
Complainant's July 23, 2004 letter indicating that the Respondent welcomed
the Complainant as a customer, that the Complainant had been taken care of
well in the preceding year, but that if the Complainant wished to use
another dealership, he was welcome to do so.

The
Complainant, after the events of July 14, 2004, took his vehicle to a
dealership in Milwaukee and was charged approximately $98 for evaluation of
a condition that was later repaired. Douglas, when he learned about the
charge paid by the Complainant, contacted the regional Service Manager for
Ford Motor Company to see about a refund to the Complainant of the amount
paid. Ford Motor Corporation had extended a warranty, and the Complainant
should not have been charged for the evaluation.

CONCLUSIONS OF
LAW

The
Complainant is a member of the protected class "race."

The
Complainant is not a member of the protected class "disability"
because he does not have an actual disability, a history of such a
disability nor is he perceived to have a disability by the Respondent or its
employees.

The
Respondent is a public place of accommodation or amusement within the
meaning of the ordinance.

The
Complainant was not denied service at or the equal enjoyment of a public
place of accommodation or amusement because of his race or for any other
reason proscribed in the ordinance.

ORDER

The Complainant is dismissed and the
parties directed to bear their own costs.

MEMORANDUM
DECISION

The record in this matter is sparse,
confusing, and in some respects, troubling. It is the lack of specific detail
that makes application of the ordinance difficult. In order to come to a
conclusion in this kind of environment, the Hearing Examiner must rely upon the
allocation of the burdens of proof and his own determinations of credibility.

The Complainant is an African
American who walks with a pronounced limp. He is the owner of a 2001 Ford Taurus
automobile. In July of 2003, the Complainant began taking his vehicle to the
Respondent for service and repairs. The Respondent is an automobile dealership
with a full service repair center.

Over the next year, the Complainant
took his Taurus to the Respondent for a variety of reasons and on a number of
different occasions. Some of the work performed on the Complainant's vehicle was
covered by warranty while the Complainant paid for other work. On several
occasions, the Respondent waived the charge for work performed as a matter of
good customer relations.

It appears that the Complainant was
generally satisfied with the work done by the Respondent. This satisfaction was
not universal, however. In June of 2004, the Complainant became more
dissatisfied with the work performed by the Respondent. He took his automobile
to other repair facilities to evaluate the work done by the Respondent. In July
of 2004, the Complainant's concern over the work performed by the Respondent
came to a head over an issue relating to alignment of the Complainant's vehicle.
He had taken his car to a Sears repair center and understood that the Respondent
had not properly aligned his vehicle. On July 14, 2004, the Complainant went to
the Respondent's dealership to gain some level of satisfaction over this issue.

The Complainant began discussions
with his service representative, but Tim Douglas, Service Center Manager,
eventually became involved. Douglas had spoken with or had dealings with the
Complainant on several occasions in the preceding year. Douglas had been
employed by the Respondent for at least 20 years in a variety of capacities, and
had been the manager in charge of the Service Center for the preceding 13 or 14
years.

What exactly happened during the
dispute or discussion between the Complainant and Douglas is highly contested.
The Complainant asserts that both he and Douglas were agitated and angry. The
Complainant states that matters came to a head when Douglas told him, "Get
your crippled, black ass out of here and don't fall down on your way out."
Douglas denies having said anything of the sort, and asserts that he suggested
that perhaps the Complainant might receive more satisfaction by trying another
repair facility.

At this point in the analysis,
neither party is entitled to a finding of credibility over the other. This means
that absent some compelling reason to believe either the Complainant or Douglas,
the Hearing Examiner is without reason to believe one version of events over
another version. Unless there is evidence in the record to alter this state, the
Complainant would "lose," because he carries the burden of proof to
establish each element of a claim of discrimination.

In a claim of discrimination in a
public place of accommodation or amusement, the Complainant must establish that
he/she is a member of a protected class or protected classes, that he/she
experienced a denial of service or a denial of equal enjoyment of a public place
of accommodation or amusement, and that there is a reason to believe that the
denial of service or the denial of equal access or enjoyment of a public place
of accommodation or amusement is causally linked with the Complainant's
membership in one or more protected classes. Should a Complainant fail to
establish any of these elements, the complaint fails with respect to that claim.
If there are multiple claims of discrimination, the Complainant must establish
each element for each claim.

In the present complaint, the
Complainant asserts two bases for his claim of discrimination, race and
disability. There is no dispute that the Complainant is a member of the
protected class race. He is an African American and no one disputes his
membership in the class "race."

There is a contest of whether the
Complainant is a member of the protected class "disability." In order
to be a member of the protected class disability, one must have an actual
disability that is known to the Respondent, have a history of an actual
disability, or be perceived as having a disability by the Respondent. In order
for one to have an actual disability, one must have a physical or mental
impairment that substantially affects a major life function. MGO 3.23(2)(m).
This definition tracks the one in the American with Disabilities Act 42 U.S.C.
1201 et. seq. The Commission may use decisions made under the ADA for guidance
in interpreting the ordinance, but is not bound by those decision unless they
are applying constitutional principles.

On this record, the Hearing Examiner
cannot find that the Complainant has an actual disability as that term is
defined by the ordinance. The Complainant has a physical impairment that results
in a substantial limp. The question is whether the impairment adversely affects
a major life function. Clearly the Complainant can walk, albeit with a limp.
There was no testimony about how exactly the Complainant is limited by the
condition relating to his leg. It would appear that the Complainant's mobility
is impaired by the condition, but how and what major life function is adversely
affected, is not presented in the record. There was no medical testimony as to
the nature, severity or limitation of the Complainant's condition. Generally
speaking, proof of an actual disability requires testimony by a medical witness
of some variety. Busto v. Wisconsin Power and Light, MEOC Case No. 20945
(Comm. Dec. 3/14/90, Ex. Dec. 9/25/89); State ex rel.Elizabeth Busto
v. MEOC and WP&L, 90 CV 1594 (Dane County Cir. Ct. 1/9/91). There was no
such testimony at the hearing.

Despite a failure of proof on the
issue of actual disability, the Complainant may still establish membership in
the protected class "disability," if he can demonstrate that the
Respondent or its employees, especially Douglas, perceived him to have a
disability. Resolution of this point will have to be reserved. The only evidence
of such a possible perception of disability is the statement that the
Complainant alleges Douglas to have made on July 14, 2004. At this point in the
analysis of the record, there is insufficient evidence to accept that the
statement, "get your crippled, black ass out of here and don't fall down on
your way out," was actually made as alleged. However, if analysis of
additional evidence leads to the conclusion that the statement was made as
alleged, it is sufficient evidence of a perception of disability for the
Complainant to be a member of the protected class "disability." Use of
the word "cripple" and directing one with an observable limp "not
to fall down on your way out" are clear, direct and unambiguous expressions
of a perception of disability.

The next question to be answered in
the prima facie analysis is whether the Complainant experienced a denial of
service or was denied equal enjoyment of a public place of accommodation or
amusement. In this regard, the Complainant contends that he was publicly treated
in an embarrassing and humiliating manner that those not of his race or those
without disabilities would have had to experience. He was required to leave
before repairs were completed on his vehicle, and circumstances made it clear he
was not welcome to return. The Respondent, in response, states that it provided
the Complainant's requested service on every occasion on which he brought his
Taurus in for work. On those occasions where the suggested work was not
performed, it was because the Complainant determined that he did not want the
work performed at that time. Douglas denies having "ejected" the
Complainant or indicating a lack of willingness to provide service in the
future. Douglas testified that he told the Complainant that the Complainant
could take the vehicle elsewhere, but also the Respondent could do the work.
Additionally, Douglas's supervisor, Gregg Erickson, on July 30, 2004, in
response to a letter from the Complainant dated July 23, 2004, indicated that
the Respondent welcomed the Complainant's business, but understood if the
complainant wished to take his business elsewhere.

This proves to be one of the pivotal
issues in this matter. If there is no denial of service or of equal enjoyment of
a service at a public place of accommodation or amusement, there is no violation
of the ordinance. On the face of it, what the Complainant asserts seems
unlikely. The Complainant and Respondent dealt well with each other for
approximately a year. There is no allegation that prior to July 14, 2004, there
was any hint of discrimination or racial or other form of animus. As a business
open to the public with substantial competition in the geographic area, the
Respondent could not accept the losses to a healthy business base if it
routinely turned away customers for any reason, much less a discriminatory one.

Noting that the Complainant's
allegation seems unlikely does not dispose of the matter. The Hearing Examiner
recognizes that despite an otherwise good working relationship, in a single
incident, tempers could flare and things might be said that would not be said
under "normal" circumstances. These statements, if they occurred, must
be taken at face value and could give rise to liability under the ordinance. If
Douglas in fact told the Complainant to "get his crippled, black ass out of
there and don't fall on your way out," it could easily be construed to be
the kind of statement that works a denial of service, and certainly a denial of
equal enjoyment of a service or public place of accommodation or amusement. The
Hearing Examiner cannot conceive of any white or "able-bodied"
customer being exposed to such statements. However, as such a denial of service
rests on the disputed statement, the Hearing Examiner must hold resolution of
this issue until the issue of whether the statement was made is decided.

Accepting for the moment that there
was a denial of service or a denial of equal enjoyment of a service at a public
place of accommodation or amusement, the Hearing Examiner must determine whether
there is sufficient evidence to conclude that the denial or service or denial of
equal enjoyment of a service was motivated by either the Complainant's perceived
disability or his race. To answer this question, the Hearing Examiner must
resolve the question that is central to this entire claim, did Douglas tell the
Complainant to "get his crippled, black ass out of there and not to fall
down on his way out?" In the scheme of things, it is the Complainant's
burden to establish by the greater weight of the credible evidence that the
statement was made. The respondent does not have a burden in this regard, i.e.,
it does not have to establish by the greater weight of the credible evidence
that Douglas did not make such a statement.

The Complainant, to support his
testimony about Douglas and his alleged statement, produced two witnesses, Laura
Kopp and Willie Solis. Both are friends or acquaintances of the Complainant.
Neither testified that she or he heard Douglas make the statement attributed to
him by the Complainant. A brief summary of these witnessesí testimony is
important at this point.

Ms. Kopp is a white woman who at the
time of hearing was 23 years of age. She stated that she had been a friend of
the Complainant's for several years, but that she had not had a more substantial
relationship with the Complainant. She testified that on July 14, 2004 (she did
not provide the date), she and a friend identified only as Abby went to meet the
Complainant at the Respondent's dealership because after the Complainant
conducted some business, they were going to go hang out together. She further
testified that she observed the Complainant and Douglas in a heated discussion.
As she was leaving the area of the repair shop, she paused in the door and
observed Douglas walking away from the Complainant and passing by a mechanic.
Kopp stated that though she could not see to whom Douglas was speaking, she
heard him mumble something to the effect of, "That nigger's going to cause
trouble."

Kopp was upset by what she heard.
She located the Complainant and told him what she overheard. She went to her car
to smoke a cigarette and was eventually joined by the Complainant and her friend
and they all left together.

On cross-examination, Kopp admitted
that she had made a claim against the Respondent for an incident in which she
slipped and fell at the dealership on the same day. She testified that she had
subsequently withdrawn her claim. She also confirmed that the statement she
overheard she attributed to Douglas but that he was walking away from her at the
time, and that there were one or more other employees of the Respondent near to
Douglas. She verified that she had not heard the "crippled, black ass"
statement.

Willie Solis testified that he was a
friend or acquaintance of the Complainant, and that he had not known him very
long. Their social acquaintance resulted because the Complainant did some
photography and had taken a couple of pictures of Solis and his wife/life
partner. Solis testified that on a date not precisely identified, he and his
wife went to the Respondent's dealership to obtain a part for his wife's car. As
they entered the dealership, Solis saw the Complainant leaving the dealership
appearing to be upset. Solis attempted to catch the Complainant's attention, but
didn't want to do so too aggressively given the bad mood in which the
Complainant appeared to be. As Solis and his wife walked towards the service
bays, his wife became upset and said that she wanted to leave. When Solis asked
why, she told him that she had heard someone say, "Nigger's going to
trouble" or "Nigger's going to cause trouble." Solis believed
that the remark may have been directed at him and his wife as they are young
African Americans, and it is his experience that such comments are from time to
time made and directed at people like him. Solis did not hear the statement
himself, nor did he have any idea who made the statement.

On cross-examination, Solis stated
that his wife was not feeling well on the day of the hearing and could not
attend. He had forgotten about the incident until he had come across the
Complainant seeking people who may have heard or witnessed the incident
underlying this complaint.

It is the Complainant's contention
that Kopp's and Solis's testimony makes it more likely that Douglas made the
"crippled, black ass" statement, and provides a second and separate
basis for finding liability linking the Complainant's race with the adverse
action. The Respondent argues that Kopp's statement is inherently incredible
because of her friendship with the Complainant, and because of inconsistencies
in her testimony and recollection, and the testimony of other witnesses.
Specifically, Douglas testified that Ms. Koppís claim for slipping and falling
occurred on June 4, 2004, another occasion on which the Complainant was present
at the Respondent's dealership, and that Kopp was drunk or had been drinking on
that occasion. Also, the Respondent points to the hearsay nature of Solis's
testimony, the general vagueness, and inability to identify the speaker or not
having heard the statement in the first place.

Given the record as a whole, the
Hearing Examiner concludes that the Complainant has failed to carry his burden
of proof with respect to whether Douglas made the "crippled black ass"
statement. Essentially, the Hearing Examiner is left with the Complainant
testifying that the statement was made and Douglas denying that he stated it.
Both the Complainant and Respondent have reasons to provide such testimony. The
Complainant cannot win his case without it while the Respondent will certainly
be exposed to liability if Douglas made the statement. The Hearing Examiner
finds both individualsí testimony credible. The Complainant did not express
himself as an individual who was out of control or incapable of remembering and
recounting an incident that significantly affected his life. Equally, Douglas
impressed the Hearing Examiner as someone who was sincere in his desire to help
his customers, and to try to deal with disputes in as calm a manner as possible
to the benefit of both the upset customer and his employer. Without more, the
Hearing Examiner cannot determine which of two equally credible witnesses he
should believe.

The testimony provided by Kopp and
Solis present both problems and support a finding that something occurred, but
do not necessarily support the allegations of the complaint. Kopp's testimony is
somewhat shaky as to date. It appears that she could well be describing an
earlier visit except that the substance of her testimony is corroborated by that
of Solis. However, it is clear that Kopp states that she did not hear the
"crippled, black ass" statement, though she was perhaps in a better
position to have heard that statement than the one she testified to having
heard. She was closer to the Complainant and Douglas and was moving out the
doorway when she heard the "nigger's going to cause trouble"
statement. If she was closer and moving away when she heard that, why did she
not hear the other alleged statement?

The other problem with Kopp's
testimony is that she was not really in a position to determine that it was
Douglas who made the "nigger's going to cause trouble" statement. From
Kopp's testimony, Douglas was moving away from her and from the Complainant.
Given her description, it appears that Douglas's back would have been to Kopp.
He was passing by other individuals when she heard the statement. Neither
counsel asked Kopp how she could identify Douglas as having made the statement,
as opposed to one of the other individuals who witnessed the discussion between
an upset Complainant and Douglas.

Solis's testimony makes it more
likely than not that the statement Kopp heard was made on July 14, 2004. Though
Kopp and the Complainant may have been at the Respondent's on June 4, 2004,
there was not testimony from which the Hearing Examiner could conclude that
Solis was there on that date too. The description of an upset Complainant, and
the closeness of the statement recounted to Solis by his wife, and that
testified to by Kopp, make it more likely that they heard the same statement on
July 14, 2004.

That Solis corroborates Kopp,
however, does not appreciably move the Complainant's proof on the
"crippled, black ass" statement forward. There is little credible
evidence tying Douglas to the "nigger's going to cause trouble"
statement other than physical proximity. On this record, it seems as likely that
the statement testified to by Kopp and Solis was made by one of the mechanics
who observed the dispute between Douglas and the Complainant. Kopp really
couldn't see who made the comment, and Solis didn't hear it and was relying
solely on his wife's statement. That such a remark should not be tolerated in
any workplace goes without saying, but its importance is much different
depending upon whether Douglas made the statement or not.

The Complainant further asserts in
support of his position that Douglas made the derogatory statement the fact that
during Douglasís deposition taken in pre-hearing proceedings, he referred to a
prior complainant in a separate action, as a "colored man." While the
term "colored man" is certainly not in vogue or generally acceptable
for African Americans today, it does not evince the type of racial animus that
would lead one to believe that phrases like "black ass" or
"nigger" are lurking high in one's vocabulary. The words used to
denote African Americans over the years have changed as to what is or is not
acceptable. Depending upon oneís family background and cultural environment
growing up, some terms might be in more common use or acceptable than others.
Douglas testified that he did not understand that "colored" was
necessarily a derogatory term or that he meant offense when he used it.

The Hearing Examiner does find this
part of the record to be somewhat troubling, but finds that it falls short of
the proof necessary to establish that Douglas told the Complainant to "get
your crippled, black ass out of there." There is certainly a suggestion
that something adverse and unacceptable happened at the Respondent's place of
business. However, the fact that there remains suspicion, as opposed to some
verified evidence, creates a problem of proof.

The Respondent spent much time and
effort to portray the Complainant as a deluded and mentally ill individual whose
testimony could not be trusted. The Respondent introduced the Complainant's
medical records and questioned the Complainant about his diagnosis and whether
he was taking prescribed medications on July 14, 2004. The Hearing Examiner
found this approach to be little more than a cheap attempt to smear the
Complainant on the record. There was apparently no effort to obtain competent
medical testimony to interpret or give guidance with respect to the
Complainant's medical history or condition. As the Complainant failed to produce
required expert testimony to demonstrate that he had an actual physical
disability, the Respondent failed to produce expert testimony to illuminate the
importance or lack of importance of the Complainant's medical records. It
represents a form of character assassination to bring up the Complainant's
medical history of mental illness and expect that the fact of a diagnosed mental
illness renders the individual inherently incredible without supporting expert
testimony.

There is another point that the
Hearing Examiner finds troubling, but is not clear about how it might have
affected the facts in this complaint. On July 23, 2004, the Complainant,
apparently after speaking with Gregg Erickson, the Respondent's manager, sent a
letter outlining his complaints about the Respondent's service of his Taurus.
Though he does not reference the specifics of either statement that was
allegedly made on July 14, 2004, he does clearly indicate that he felt that he
had been discriminated against. Erickson's response on July 30, 2004, while
welcoming the Complainant back as a customer, makes no reference to the
Complainant's feelings of discrimination, and there is nothing in the record to
indicate that the concerns about discrimination identified in the Complainant's
July 23, 2004, letter were ever investigated or addressed. Had the Complainant
alleged discrimination in a different manner, the correspondence and the lack of
effort on the part of the Respondent may well have been the basis for a
different result.

The Complainant asserts that the
"nigger's going to cause trouble" statement might provide a separate
basis for finding a denial of service or denial of equal enjoyment of a service
in a public place of accommodation or amusement. He seems to contend that even
though he found out about this statement after the fact, that it somehow denied
him service or the equal enjoyment of the services of the Respondent. In support
of his position, the Complainant cites Bond v. Michaelís Family Restaurant,
ERD 9150755 and 9151204 (March 30, 1994), arguing that even though the statement
was not directed at the complainants in that case, they were permitted to bring
suit. In that case, the complainants were customers in a restaurant who had to
listen to a discussion by two restaurant employees that was filled with racial
slurs and invective. The court held that even though the customers were not the
target of the employees' racial animus, their enjoyment of a public place of
accommodation or amusement was diminished by being exposed to the employees'
conduct. Bond is different from the case at hand. The Complainant did not
overhear the statement and only learned of it much after the fact. It could not
have resulted in a diminishment of his experience at the Respondent's because
while he was at the Respondent's he was not aware of the statement. Had the
Complainant testified that he was kept from returning because of the statement
and the attitude it evinces, that might be different, but that was not the
testimony in the record. Again it is not to excuse the use of such language in
any business or public place, but it fails to establish a cause of liability in
this particular setting.

Having determined that the
Complainant fails to meet his burden of proof on the question of whether Douglas
made the "crippled, black ass" comment, the Hearing Examiner must
return to those matters he deferred. First, without proof of the Douglas
statement, the Complainant cannot demonstrate that the Respondent perceived him
to have a disability. Absent the reference to "crippled" and
"don't fall on your way out," there is no evidence in the record upon
which the Hearing Examiner can base a finding on perceived disability.

Second, there can be no finding of a
denial of service if Douglas's statement is not accepted. It forms the sole
basis for finding a denial of service. As noted above, the "nigger"
statement, though outrageous, comes after the fact and does not demonstrate a
denial of service or equal enjoyment.

Finally, without a finding that
Douglas made the "crippled, black ass" statement, there is no basis,
even if a denial of service had been found, to link either of the Complainantís
protected classes to the adverse action.

The parties have had to wait a long
time for this decision. The period of waiting reflects the deep thought and
reflection that the Hearing Examiner has put into the conclusions contained
herein. While the Hearing Examiner concludes that there was a failure of proof
with respect to the claims of this complaint, it seems clear the Respondent has
much work to do before it can say that it truly cares about the service it
extends to all of its customers.